Dahlman v. City of Milwaukee

• Decision Date: 30 April 1907
• Citation: 131 Wis. 427,111 N.W. 675
• Parties: DAHLMAN ET AL. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

131 Wis. 427

111 N.W. 675

DAHLMAN ET AL.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

April 30, 1907.

On motion for rehearing. Motion denied, and judgment modified and affirmed.

For former opinion, see 110 N. W. 479.

WINSLOW, J.

The respondent moves for a rehearing in this case upon three grounds which will be briefly considered.

It is forcibly argued that the court was wrong in holding that section 1210d, St. 1898, as amended by chapter 9, p. 9, Laws 1901, applies to the city of Milwaukee. We have again examined the question in the light of the new consideration now urged, and we feel entirely satisfied with the correctness of the original decision upon this point. Hence the question will not be reopened.

2. It is urged that it appears by the defendant's answer that the grade of the street was not fixed by ordinance until November 20, 1902, which was after the actual grading had been ordered to be done, and hence that there was neither jurisdiction on the part of the city council to order the grading to be done, nor jurisdiction on the part of the court to order a reassessment. This subject was briefly mentioned in the original brief of respondent, but was overlooked in the opinion. Reference to the pleadings shows that in the complaint it was expressly charged that the city fixed the grade of the street by ordinances adopted during the years 1901, 1902, and 1903, and that the initial resolution by which the proceedings for actually grading the streets was introduced into the common council March 10, 1902, and adopted May 5, 1902. There was no charge in the complaint that the proceedings were irregular or illegal on account of any failure to previously fix the grade; but the sole claim made was that the assessment was void because arbitrarily made, and because there was a total failure to consider or assess any damages. There was an allegation in the answer that the first grade of the street was fixed November 20, 1902, which would be after the proceedings for grading had been commenced; but it was further alleged in the same connection that whatever grading was done in front of the plaintiff's premises was done for the purpose of conforming the street to said established grade. Upon the argument of the case, it was claimed that this date was a clerical error, and should have been November 20, 1900. However this may be, it clearly appears that no claim of illegality or irregularity in the grading proceedings on account of failure to properly establish the grade was ever made in this case until it reached this court. The case was fought through the trial court upon the assumption that the grade was established by timely action of the common council as the complaint in effect states. No attention was paid to the allegation in the answer that the grade was first established in November, 1902, or, if attention was paid thereto, it seems to have been considered immaterial.

It is now stated by respondents' counsel that since the prior argument sufficient facts have come to his notice to warrant him in asserting that no valid ordinance establishing the grade of the street has ever been passed by the common council, and he desires leave to amend his complaint so as to allege this fact and obtain a new trial on this new issue. It will be noticed that he does not claim that no ordinance was attempted to be passed or that the date of November 20, 1902, is the correct date, but simply that no valid ordinance was ever passed. It is only in exceptional cases that this court will remit a case which is ready for final disposition after full trial, and grant leave to make application to the trial court to set up new causes of action or new defenses, making substantially another case. There must be a fairly persuasive showing on the merits, and it should also...